AGUILAR v. TONA CONSTRUCTION MANAGEMENT LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated July 10, 2024, and (2) an order of the same court dated March 26, 2025.  The order dated July 10, 2024, granted the defendants' motion for summary judgment dismissing the complaint.  The order dated March 26, 2025, denied the plaintiff's motion pursuant to CPLR 5015(a) to vacate the order dated July 10, 2024.

ORDERED that the appeal from the order dated July 10, 2024, is dismissed, as no appeal lies from an order entered on the default of the appealing party (see CPLR 5511);  and it is further,

ORDERED that the order dated March 26, 2025, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in May 2020 while working at a construction site as an employee of New Amsterdam Building Solutions (hereinafter New Amsterdam).  New Amsterdam was a subcontractor hired by the general contractor, the defendant Tona Construction & Management, LLC. The defendant 1941 Coney Island Avenue, LLC, was the owner of the property.  In April 2023, the defendants moved for summary judgment dismissing the complaint.  The plaintiff submitted papers in opposition to the motion but defaulted in appearing at oral argument.  In an order dated December 20, 2023, the Supreme Court granted the defendants' motion upon the plaintiff's default.  Thereafter, the court granted the plaintiff's motion to vacate the order dated December 20, 2023, and scheduled the defendants' motion to be heard on July 10, 2024.  The plaintiff again defaulted in appearing at oral argument, and in an order dated July 10, 2024, the court granted the defendants' motion upon the plaintiff's default.  Thereafter, the plaintiff moved pursuant to CPLR 5015(a) to vacate the order dated July 10, 2024.  In an order dated March 26, 2025, the court denied the plaintiff's motion.  The plaintiff appeals from the orders dated July 10, 2024, and March 26, 2025.

The appeal from the order dated July 10, 2024, must be dismissed, as no appeal lies from an order entered upon the default of the appealing party (see id. § 5511).

To vacate his default in appearing for oral argument, the plaintiff was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the defendants' motion (see Szklarz v. Racer, 227 A.D.3d 1033, 1034, 212 N.Y.S.3d 392;  Rudsky v. Schechtman, 219 A.D.3d 1453, 1454, 196 N.Y.S.3d 171).  “The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion” (Gershman v. Ahmad, 131 A.D.3d 1104, 1105, 16 N.Y.S.3d 836;  see Patel v. New York City Tr. Auth., 199 A.D.3d 925, 926–927, 154 N.Y.S.3d 470).  “Law office failure may be accepted as a reasonable excuse ․ provided that such an excuse is supported by a detailed and credible explanation for the law office failure alleged to have caused the default” (Wells Fargo Bank, N.A. v. Hakim, 230 A.D.3d 1271, 1273, 218 N.Y.S.3d 458 [citation and internal quotation marks omitted];  see Patel v. New York City Tr. Auth., 199 A.D.3d at 927, 154 N.Y.S.3d 470).  Here, although the parties submitted a stipulation requesting an adjournment of oral argument on the defendants' motion, which was rejected by the Supreme Court, the explanation of the plaintiff's counsel that he did not receive the court's April 4, 2024 rejection failed to establish a reasonable excuse for the default more than three months thereafter.  Moreover, the plaintiff failed to demonstrate a potentially meritorious opposition to the defendants' motion, as his submissions would not have raised a triable issue of fact in opposition to the defendants' prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint.

Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate the order dated July 10, 2024.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.